What Happens at a Probable Cause Hearing?

A probable cause hearing, also known as a preliminary hearing, takes place during criminal proceedings for felony offenses – typically during the first six weeks of the case. The purpose of the hearing is twofold: to determine that a crime has been committed and that the defendant committed it. The hearing is relatively short, but it's an important step in the process.

All defendants charged with a felony offense have the right to a probable cause hearing, although no such right attaches to misdemeanor offenses. The hearing establishes whether the prosecution has a prima facie case, meaning that it has enough evidence against the defendant to take the case to trial. The prosecution is required to prove that it's more likely than not that a crime was committed and that the defendant committed that crime.

The probable cause hearing provides the first opportunity for the defense attorney to challenge the evidence and the charges, and, if successful, the charges can be dismissed.

Read More: Affidavit of Probable Cause

A defendant has the right to waive the probable cause hearing. This sometimes happens in return for the prosecutor reducing the charges against him. This isn't the same as agreeing to the charges or pleading guilty, and the waiver can't be used against the defendant at trial. It simply moves the case on to the arraignment phase.

Although the probable cause hearing might seem something like a mini-trial, it's an intermediary step and not a finding of guilt or innocence. The judge, the defendant's attorney, the prosecutor and any subpoenaed victim and witnesses are present, and the hearing is open to the public.

The prosecutor begins a probable cause hearing by producing evidence to prove a prima facie case, which means that the evidence is accepted as fact until proven otherwise. In some states, the law allows the prosecution to rely on hearsay testimony and other testimony that would otherwise be inadmissible at trial. Depending on the nature of the crime and the facts of the case, this process might involve calling witnesses. Typically, the arresting police officer is called to testify about everything he knows about the case.

The defense attorney can then challenge the evidence and cross-examine any witnesses. The defense might argue that the charges should be dismissed or downgraded on the basis that the evidence is weak or circumstantial, or that the defendant has been overcharged.

The defense attorney and the prosecutor can address the judge to argue their positions after the court has heard all relevant testimony. They'll summarize their respective cases to try to persuade the judge to dismiss the charges or to hold the defendant for trial.

If the defendant has not been able to post bail, the defense attorney might make a motion for a bail reduction at the probable cause hearing.

If the judge finds that the prosecution does not have enough evidence to prove a prima facie case – in other words, he does not find probable cause – the court will dismiss the case. The case might also be dismissed if witnesses fail to appear to testify.

The case will proceed to an arraignment if the judge finds probable cause. Typically, a case with insufficient probable cause is dismissed without prejudice, which means that it can be recharged at a later date if the prosecution learns of additional evidence.

At the arraignment, the judge tells the defendant what she has been charged with and asks if she understands those charges. The defendant can then enter a plea of guilty or not guilty. If she pleads guilty, the case will proceed to sentencing. If she pleads not guilty, the case will be scheduled for a pretrial conference.